Volume 69 — North Carolina Court of Appeals Reports

Contracts 3 — "agreement" for sale and purchase of house — indefiniteness of agreement A proposed contract for the sale of a home was incomplete and unenforceable because it lacked essential terms which were beyond the court's capacity to supply by implication and as to which the parties had not agreed upon a mode of settlement. Although the document specified a sale price, it stated that the terms of payment would be agreed upon subsequently; therefore, the minds of the parties had not met on a "portion of the proposed terms."

1. Rules of Civil Procedure 12, 56 — motion to dismiss before responsive pleading filed Since defendants' motion to dismiss was made and granted prior to their filing any responsive pleading, it was properly before the court as a motion for summary judgment under G.S. <cross_reference>1A-1</cross_reference>, Rule 56, and because plaintiffs' complaint was the only material before the trial court, defendants' motion was no different in effect from a motion to dismiss for failure to state a claim for relief under G.S. <cross_reference>1A-1</cross_reference>, Rule 12(b)(6).<page_number>Page 711</page_number> 2. Limitation of Actions 8.2 — fraud — time of discovery — action not barred by statute of limitations The trial court erred in dismissing plaintiffs' claims for fraud on the ground that they were barred by the statute of limitations where plaintiffs alleged that they were engaged in a logging business with defendants; plaintiffs described the allegedly fraudulent acts and stated that they occurred in 1979 but were not discovered until 1981; and plaintiffs alleged that defendants were their accountants and this special relationship could excuse their failure to exercise due diligence. 3. Limitation of Actions 4 — unfair trade practices — four year statute of limitations The trial court erred in dismissing plaintiffs' claims of unfair and deceptive trade practices on the ground that they were barred by the statute of limitations, since plaintiffs alleged that the practices occurred in 1979; their claim was filed in 1983; and G.S. <cross_reference>75-16.2</cross_reference> provides a four year statute of limitations for claims of unfair trade practices.